EXHIBIT 10.16(a)
FORM 10-K
YEAR ENDED DECEMBER 31, 2002
AMENDMENT NO. 1
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of
December 31, 2002, by and among BUCYRUS INTERNATIONAL, INC., a corporation
organized under the laws of the State of Delaware ("Bucyrus"), MINSERCO, INC.,
a corporation organized under the laws of the State of Delaware ("Minserco")
and BOONVILLE MINING SERVICES, INC., a corporation organized under the laws of
the State of Delaware ("Boonville"), (Bucyrus, Minserco and Boonville, each a
"Borrower" and collectively, the "Borrowers"), BUCYRUS CANADA LIMITED, a
corporation organized under the laws of the Province of Ontario ("Bucyrus
Canada"), BUCYRUS HOLDINGS, LLC, a limited liability company organized under
the laws of the State of Delaware ("Holdings"), (Holdings and, Bucyrus Canada,
each a "Guarantor" and collectively, the "Guarantors"), the financial
institutions which are now or which hereafter become a party hereto (each a
"Lender" and collectively, the "Lenders"), GMAC BUSINESS CREDIT, LLC, a
limited liability company organized under the laws of the State of Delaware
("GMACBC"), as agent for Lenders (GMACBC, in such capacity, the "Agent") and
BANK ONE, WISCONSIN ("BOW"), as syndication agent for Lenders (BOW, in such
capacity, the "Syndication Agent").
BACKGROUND
Borrowers, Guarantors, Agent, Syndication Agent and Lenders are parties
to a Loan and Security Agreement dated as of March 7, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement") pursuant to which Agent and Lenders provide Borrowers with certain
financial accommodations.
Borrowers have requested Agent and Lenders to extend the Original Term
of the Loan Agreement from January 2, 2003 to February 4, 2003, and Agent and
Lenders are willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE,in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by
Agent and Lenders, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
condition precedent set forth in Section 3 below, Section 13.1 of the Loan
Agreement is hereby amended by deleting the date "January 2, 2003" appearing
therein and by inserting the date "February 4, 2003" in lieu thereof.
3. Condition of Effectiveness. This Amendment shall become effective
upon Agent's receipt of four (4) copies of this Amendment, executed by all
Borrowers, Guarantors and Lenders.
4. Representations and Warranties. Each Borrower hereby represents
and warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of each Borrower and are
enforceable against each Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower
hereby reaffirms all covenants, representations and warranties made in the
Loan Agreement to the extent the same are not amended hereby, and agrees that
all such covenants, representations and warranties shall be deemed to have
been remade as of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) No Borrower has any defense, counterclaim or offset with
respect to the Loan Agreement.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered
in connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or
Lenders, nor constitute a waiver of any provision of the Loan Agreement, or
any other documents, instruments or agreements executed and/or delivered under
or in connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the
State of New York.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts; Facsimile. This Amendment may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the
same agreement. Any signature delivered by a party by facsimile transmission
shall be deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
BUCYRUS INTERNATIONAL, INC.
By: /s/T. W. Sullivan
Name: Timothy W. Sullivan
Title: President
MINSERCO, INC.
By: /s/T. W. Sullivan
Name: Timothy W. Sullivan
Title: President
BOONVILLE MINING SERVICES, INC.
By: /s/T. W. Sullivan
Name: Timothy W. Sullivan
Title: President
BUCYRUS CANADA LIMITED
(as Guarantor)
By: /s/T. W. Sullivan
Name: Timothy W. Sullivan
Title: President
BUCYRUS HOLDINGS, LLC
(as Guarantor)
By: /s/T. C. Rogers
Name: T. C. Rogers
Title: Director
GMAC BUSINESS CREDIT, LLC, as a Lender
and as Agent
By: /s/Frank A. Chiovari
Name: Frank A. Chiovari
Title: Director
Commitment Percentage: 29.4118%
BANK ONE, WISCONSIN
By: /s/Mark P. Bruss
Name: Mark P. Bruss
Title: First Vice President
Commitment Percentage: 23.5294%
THE BANK OF NOVA SCOTIA
By: /s/Mark Sparrow
Name: Mark Sparrow
Title: Director
Commitment Percentage: 14.6541%
MARINE BANK
By: /s/William E. Shaw
Name: William E. Shaw
Title: Senior Vice President
Commitment Percentage: 11.7647%
FLEET CAPITAL CORPORATION
By: /s/Brian Conole
Name: Brian Conole
Title: Sr. Vice President
Commitment Percentage: 6.8800%
LASALLE BANK NATIONAL ASSOCIATION
By: /s/D. Marinovic
Name: Dusko Marinovic
Title: Assistant Vice President
Commitment Percentage: 6.8800%
BANK OF SCOTLAND
By: /s/Joseph Fratus
Name: Joseph Fratus
Title: First Vice President
Commitment Percentage: 6.8800%